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Supreme Court won’t hear police officers’ lawsuits against Mosby

Baltimore State's Attorney Marilyn Mosby. (The Daily Record / Maximilian Franz)

Baltimore State’s Attorney Marilyn Mosby. (The Daily Record / Maximilian Franz)

The Supreme Court declined to take up the issue of prosecutors’ immunity from lawsuits when investigating crimes and seeking charges, putting an end to the lawsuit filed by five of the officers involved in Freddie Gray’s arrest against Baltimore City State’s Attorney Marilyn J. Mosby.

The court denied the officers’ petition for certiorari Tuesday, allowing a ruling by the 4th U.S. Circuit Court of Appeals that found Mosby was immune from their state and federal claims to stand.

Mosby said she felt “somewhat vindicated” by the court’s decision not to review the case, which affirmed that her office “acted in the best interest of seeking justice for the victim.”

Sgt. Alicia White, Lt. Brian Rice and officers Edward Nero, Garrett Miller and William Porter were involved in Gray’s arrest and transport in April 2015. Along with Officer Caesar Goodson, who did not file a civil suit, they were charged with offenses ranging from second-degree murder and manslaughter to assault and misconduct in office.

Prosecutors dropped the cases in 2016 after a hung jury and three acquittals.

“I have no regrets in my decision to prosecute the officers involved in this case,” Mosby said. “I believe that a crime took place and there were individuals that needed to be held accountable for their actions in this incident.”

Mosby said the cases and the lawsuits took “an incredible toll” on her personally as well as the office but she is “proud to be part of the legacy of reform that is a direct result of the tragic death of Freddie Carlos Gray Jr.”

Gray died after sustaining neck and back injuries while handcuffed and shackled and his death touched off days of civil unrest in Baltimore and the U.S. Department of Justice launched in investigation into the police department’s practices.

David Ellin, who represented Rice, said he and his client were disappointed by the court’s denial because he believed the justices would want to take the case up despite the relatively few that are granted review.

“We’re not sure why they declined to hear the case because it doesn’t tell you anything other than ‘cert. denied,’” he said.

The plaintiff officers alleged Mosby violated their constitutional rights by arresting them without probable cause and presenting false or misleading information in the process. They also claimed she defamed them in statements made at a May 2015 press conference announcing the charges.

The 4th Circuit found Mosby’s decision to bring charges fell under the umbrella of absolute prosecutorial immunity and the defamation claims were barred by the Maryland Tort Claims Act because she was a state employee acting within the scope of her employment. A U.S. District Court judge had preserved some claims in partially granting a motion to dismiss.

“To the extent the Officers ask us to create a new rule that participation in an investigation deprives a prosecutor’s subsequent acts of absolute immunity, we balk at the proposition,” Chief Judge Roger L. Gregory wrote in the 4th Circuit opinion. “Perhaps to the Officers’ chagrin, they must accept that they are subject to the same laws as every other defendant who has been prosecuted and acquitted.”

In seeking Supreme Court review, attorneys for the officers argued the 4th Circuit misapplied precedent. They argued when a prosecutor undertakes a criminal investigation and presents results to a law enforcement officer, that person is not functioning as a prosecutor and not entitled to absolute prosecutorial immunity.

Ellin said there are policy reasons for prosecutorial immunity but he does not believe they were served in this case.

“You want them to be able to charge people and not worry about recrimination, but there are instances where there actions can go too far and I think it sends a bad message that they can act and not worry about the consequences,” he said.

Mosby called the lawsuits “retaliatory” and said she knew the law was on her side but the process was still stressful.

Baltimore attorney Catherine Flynn, who represented the officers in their certiorari petition, was unavailable for comment Tuesday, as were attorneys for the remaining four plaintiffs. A spokesperson for the Maryland Office of the Attorney General did not respond to a request for comment.

The lawsuit also named Maj. Samuel Cogen, the member of the Baltimore City Sheriff’s Office who signed the probable cause statements that led to the officers’ arrests. A trial judge dismissed the case against Cogen in August in light of the 4th Circuit’s ruling which left “little room for doubt that probable cause existed to bring the charges.”

The officers appealed the dismissal in September and it was placed on hold while the petition to the Supreme Court was pending.

The case is Edward Michael Nero et al. v. Marilyn Mosby, 18-440.

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